Citation Nr: 0809790
Decision Date: 03/25/08 Archive Date: 04/09/08
DOCKET NO. 02-15 230A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to an increased rating for post operative left
inguinal hernia, currently evaluated at 10 percent.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Robert L. Grant, Associate Counsel
INTRODUCTION
The veteran had active service from August 1976 to August
1979.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of the VA Regional
Office (RO) in Waco, Texas which denied entitlement to the
benefits sought on appeal.
FINDING OF FACT
The veteran's left inguinal hernia is not shown to be small,
postoperative recurrent, or unoperated irremediable, not well
supported by truss, or not readily reducible.
CONCLUSION OF LAW
The criteria for an evaluation in excess of 10 percent for a
left inguinal hernia have not been met. 38 U.S.C.A. §§ 1155,
5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159,
4.1- 4.14, 4.114, Diagnostic Code 7338 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Before addressing the merits of the veteran's claim on
appeal, the Board is required to ensure that the VA's "duty
to notify" and "duty to assist" obligations have been
satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38
C.F.R. § 3.159 (2007). The notification obligation in this
case was accomplished by way of a letter from the RO to the
veteran dated in April 2007. The RO provided the requisite
notification regarding the disability ratings or the
effective date that could be assigned in a March 2006 letter.
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
The Board acknowledges a recent decision from the United
States Court of Appeals for Veterans Claims (Court) that
provided additional guidance of the content of the notice
that is required to be provided under 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b) in claims involving increased
compensation benefits. Vazquez-Flores v. Peake, No. 0-355
(U.S. Vet. App. Jan. 30, 2008). In that decision, the Court
stated that for an increased compensation claim, 38 U.S.C.A.
§ 5103(a) requires, at a minimum, that the VA notify the
claimant that to substantiate a claim the claimant must
provide, or ask the VA to obtain, medical or lay evidence
demonstrating a worsening or increase in severity of the
disability and the effect that worsening has on the
claimant's employment and daily life. Further, if the
Diagnostic Code under which the claimant is rated contains
criteria necessary for entitlement to a higher disability
rating that would not be satisfied by the claimant
demonstrating a noticeable worsening or increase in severity
of the disability and the effect that worsening has on the
claimant's employment and daily life (such as a specific
measurement or test result), the VA must provide at lease
general notice of that requirement to the claimant. Vazquez-
Flores v. Peake, No. 05-355, Slip op. at 5-6.
While the veteran was clearly not provided this more detailed
notice, the Board finds that the veteran is not prejudiced by
this omission in the adjudication of his increased rating
claim. In this regard, the veteran is represented by a
National Veterans' Service Organization recognized by the VA,
and the Board presumes that the veteran's representative has
a comprehensive knowledge of VA laws and regulations,
including those contained in Part 4, the Schedule for Rating
Disabilities, contained in Title 38 of the Code of Federal
Regulations. In addition, after the veteran and his
representative were provided copies of the Statement of the
Case, the representative submitted a VA Form 646 (Statement
of Accredited Representative in Appealed Case), or its
equivalent, in which the representative essentially
acknowledged receipt of that document. The Statement of the
Case issued to the veteran contained a list of all evidence
considered, a summary of adjudicative actions, all pertinent
laws and regulations, including the criteria for evaluation
of the veteran's disability, and an explanation for the
decision reached. In the Board's opinion all of the above
demonstrates actual knowledge on the part of the veteran and
his representative of the information to be included in the
more detailed notice contemplated by the Court. As such, the
Board finds that the veteran is not prejudiced based on this
demonstrated actual knowledge.
The RO also provided assistance to the veteran as required
under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as
indicated under the facts and circumstances in this case.
The veteran and his representative have been kept informed of
the RO's actions in this case by way of the Statement of the
Case, and been informed of the evidence considered, the
pertinent laws and regulations and a rationale for the
decision reached in denying the claim. The veteran and his
representative have not made the RO or the Board aware of any
additional evidence that needs to be obtained in order to
fairly decide this appeal, and have not argued that any error
or deficiency in the accomplishment of the duty to notify and
duty to assist has prejudiced him in the adjudication of his
appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005),
rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).
Therefore, the Board finds that the duty to notify and duty
to assist have been satisfied and will proceed to the merits
of the veteran's appeal.
The veteran essentially contends that the current evaluation
assigned for his left inguinal hernia disability does not
accurately reflect the severity of that disability.
Disability evaluations are determined by evaluating the
extent to which a veteran's service-connected disability
adversely affects his ability to function under the ordinary
conditions of daily life, including employment, by comparing
the symptomatology with the criteria set forth in the
Schedule for Rating Disabilities. The percentage ratings
represent, as far as can practicably be determined, the
average impairment in earning capacity resulting from such
diseases and injuries and the residual conditions in civilian
life. Generally, the degree of disability specified are
considered adequate to compensate for considerable loss of
working time from exacerbations or illnesses proportionate to
the severity to the several grades of disability. 38
U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes
identify the various disabilities and the criteria for
specific ratings.
If two disability evaluations are potentially applicable, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
evaluation. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7. After careful consideration of the evidence,
any reasonable doubt remaining will be resolved in favor of
the veteran. 38 C.F.R. § 4.3. While the veteran's entire
history is reviewed when making a disability determination,
38 C.F.R. § 4.1, where service connection has already been
established and an increase in the disability rating is at
issue, it is a present level of disability that is of primary
concern. Francisco v. Brown, 7 Vet. App. 55 (1994).
The Board is also required to consider whether the veteran
may be entitled to a staged rating. Therefore, in this
claim, the Board has assessed the level of disability from
the date of initial application for service connection to the
present, determining whether the level of impairment warrants
different disability ratings at different times over the life
of the claim. Fenderson v. West, 12 Vet. App. 119 (1999);
Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19,
2007).
A review of service medical records indicates that the
veteran underwent left inguinal hernia repair surgery while
on active duty in 1977. Post service, the veteran underwent
a second left inguinal hernia surgery in 1998, and the RO
awarded a 100 percent evaluation while the veteran recovered
from surgery from January 1998 to February 1998. After
recovery, the veteran was found by the RO to have a
noncompensable evaluation for left inguinal hernia.
In January of 2002 the veteran was treated at a VA hospital
and diagnosed with a recurrent left inguinal hernia. A VA
examination was conducted in April 2002. At that time the
veteran was found to have a recurrent left inguinal hernia
which was said to be reducible. In July of 2002 the RO
evaluated the veteran's hernia disability as 10 percent
disabling effective January 30, 2002, under Diagnostic Code
7338, and the veteran perfected a timely appeal.
A review of additional medical records indicates that the RO
attempted to schedule VA examinations in November 2003 and
April 2007. The record indicates that the veteran was unable
to attend these examinations due to incarceration. However,
it does appear that the veteran was transported to a hospital
for treatment in June 2003 and September 2003. During those
visits the veteran was said to have a reducible left inguinal
hernia.
Under 38 C.F.R. § 4.114, Diagnostic Code 7338, a 10 percent
evaluation is for assignment for a postoperative recurrent
inguinal hernia that is readily reducible and well supported
by a truss or belt. The next higher 30 percent evaluation is
for assignment for a small, postoperative recurrent inguinal
hernia or unoperated irremediable, not well supported by
truss, or not readily reducible.
Based upon the above medical information, the Board finds
that the criteria for a 10 percent rating, but no more, have
been met. The medical evidence is clear that the veteran's
hernia is postoperative and recurrent. However, while
examinations of the veteran's left inguinal hernia in 2002
and 2003 did not speak to the issue of whether the veteran's
hernia was well-supported by truss, all recent examinations
have indicated that the veteran's hernia was reducible. As
such, the criteria for a 30 percent or higher rating have not
been met and a rating higher than 10 percent is not
warranted.
ORDER
An evaluation in excess of 10 percent for a left inguinal
hernia is denied.
____________________________________________
RAYMOND F. FERNER
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs